Ag JOBs Amnesty: The Wrong Way to Help American Agriculture

On Thursday, May 14, Senator Dianne Feinstein (D-CA),
Representative Howard Berman (D-CA), and Representative Adam Putnam
(R-FL) introduced "the Agricultural Jobs, Opportunity, Benefits and
Security Act," also known as the Ag JOBS Act of 2009. This
legislation would grant citizenship to individuals who work a
certain number of years in the U.S. agricultural sector. While
proponents of this bill have characterized it as an attempt to help
American farmers, the bill would grant amnesty to the estimated
600,000-800,000 farm industry workers living in the United States
illegally.

America's farmers are in need of assistance--but amnesty is not
the answer. Instead, Congress should enforce America's immigration
laws and develop a realistic, market-oriented, temporary-worker
program to allow legal flows of workers that meet the needs of
employers and employees.

Agriculture Avoids H-2A

American agriculture is important. Senator Feinstein accurately
stated that these industries need people to "plant, to prune, to
fertilize, to pick, and to can. And without that, America ceases to
be a major breadbasket." The H-2A visa was designed as temporary,
non-immigrant visa to allow foreign nationals to enter the U.S. and
work on farms and in other seasonal jobs in order to fulfill the
workforce needs of U.S. agriculture.

Currently, however, only an estimated 75,000 workers are in the
H-2A program. The reason: It is simply too bureaucratic and
expensive for employers to use it effectively. The current method
by which the Department of Labor calculates wages is flawed,
resulting in inflated wages that are higher for H-2A workers than
for American employees. Furthermore, employers must file paperwork
with multiple departments, identify specific workers when filing a
petition with the Department of Homeland Security (DHS), and then
wait for months. This long process often means that workers are no
longer available when the visas are granted.

The H-2A program's problems reduce employers' incentives to hire
employees legally. Often employers wind up hiring illegal
immigrants as employees instead--making illegal border crossings
all the more attractive, because illegal immigrants know there will
be work whey they get to the United States.

The Ag JOBS Amnesty

The Ag JOBS Act would create a pilot program that would provide
work visas, also known as "blue cards," to guest workers looking to
work in the agricultural sectors. Blue cards have long been used to
help legal individuals work in the United States. However, under Ag
JOBS, blue cards would be given to workers whether or not they were
in the U.S. legally.

After working for three to five years, program participants are
required to become citizens. This would provide amnesty and a
direct path to citizenship for the estimated 600,000-800,000
illegal agricultural workers and their family members (this number
has decreased since the economic downturn; in 2007 this number was
estimated at 1.3 million).

To gain blue card status, applicants would only have to
demonstrate that they worked in agriculture for "863 hours or 150
work days" in 2007 and 2008. The bill would not require necessarily
valid documentation; it would instead allow an alien to provide
"any other reliable document" to demonstrate worked hours. This
means some individuals could gain citizenship without working a day
in the agricultural sector. Finally, DHS (under the bill's
confidentiality clause) would be barred from using the applicant's
information to enforce federal immigration laws.

The Ag JOBS bill would have the perverse effect of decreasing
the incentives for employers to hire workers with a blue
card--causing a tremendous disadvantage to those using blue cards
legally. This is because the amendment protects workers with blue
card status from being fired unless the employer has "just cause."
This kind of protection is not even afforded to those American
workers who work on an "at will" basis in many states, where they
can be fired for any reason or no reason. This could mire employers
in legal proceedings if a worker feels that he has been unjustly
fired and would be a large disincentive for employers to hire
workers with a blue card.

The Right Path Forward

The right solution is to enact fair, compassionate, and
practical reforms to current visa programs that get employers the
employees they need. Consequently, Congress should:

Reject amnesty. Not only would amnesty reward those who
came to the U.S. illegally, but it would also encourage others to
engage in the same behavior. Given the high price tag associated
with providing public services, health care, and education for
illegal immigrants, amnesty is simply the wrong solution.

Streamline H-2A. Policymakers should reduce the number
of departments an employer must go through and find ways to process
and turn around documentations, including visas, faster. Coupled
with these reforms, and in accordance with the US-VISIT mandate
requiring DHS to track the exit of visitors leaving the country,
DHS should rapidly implement a voluntary exit system at the
land borders--this will help DHS track overstays (those staying
after their visa has expired). Under a voluntary exit system, if
foreign visitors and workers do not exit prior to their expiration
dates, they are no longer eligible for U.S. visas.Once the system
is in place, employers should be required to put up a bond to
ensure the H-2A workers exit the country before their visas
expire.

Enforce immigration laws. For many years, the government
turned a blind eye to illegal immigration, only reinforcing the
incentives for foreigners to enter the country illegally. The
executive branch is responsible for implementing laws passed by
Congress, but immigration reform is possible only if the government
defends its laws. The federal government and state and local
governments should continue to ensure that employers are not hiring
illegal immigrants while cracking down on those living in the
country illegally.

Secure the border. The porous U.S. border makes illegal
entry into the United States an easier and more attractive option
than legal avenues. Conscious efforts should be made to give the
U.S. government greater awareness along the border. The physical
and technological fence is only part of the solution. More border
agents are needed, more technology needs to be deployed, and
federal authorities need to cooperate and collaborate more with
state and local law enforcement.

Amnesty Is Not the Answer

Proving genuine assistance to farmers and other agricultural
sectors is important. And foreign workers have always been a pillar
of the American economy. Amnesty, however, is the wrong answer.

Jena Baker
McNeill is Policy Analyst for Homeland Security in the Douglas
and Sarah Allison Center for Foreign Policy Studies, a division of
the Kathryn and Shelby Cullom Davis Institute for International
Studies, at The Heritage Foundation.